Goodlatte, Grassley Tell NTIA IANA Transition 'Premature'
The House and Senate Judiciary committees' leaders raised concerns Monday about the Internet Assigned Numbers Authority (IANA) transition. They said in a letter to NTIA Administrator Larry Strickling that ICANN’s IANA transition-related plans and NTIA’s evaluation of those plans leave unanswered multiple legal, constitutional and human rights questions. The letter from House Judiciary Chairman Bob Goodlatte, R-Va., and Senate Judiciary Chairman Chuck Grassley, R-Iowa, follows concerns raised by several other GOP lawmakers about the IANA transition (see 1605240067 and 1606210049). NTIA is reviewing the letter, a spokesman said.
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NTIA’s intention to allow the IANA transition to occur once the existing IANA contract expires Sept. 30 “is misguided or, at the very least premature,” Goodlatte and Grassley said. They said the GAO hasn’t issued a report they requested in September about whether it’s constitutional for the transition to proceed without Congress’ approval (see 1509280056). “We remain concerned that NTIA’s planned transition of the IANA functions may potentially relinquish ownership of [U.S.] property,” Goodlatte and Grassley said. “It does not make sense to proceed without definitive answers to this question." Goodlatte and Grassley, unlike other vocal IANA transition skeptics, didn’t explicitly urge NTIA to extend its existing contract with ICANN to administer the IANA functions. Grassley is a co-sponsor of a proposed amendment to the Senate’s FY 2016 Department of Commerce budget that would extend a ban on NTIA’s ability to use its funds on the IANA transition (see 1606170026).
Goodlatte and Grassley criticized ICANN for failing “to address important issues regarding freedom of speech and human rights” in the IANA transition plans “in their rush to meet artificial, politically imposed deadlines.” Recommended changes to ICANN accountability mechanisms includes a recommendation that the nonprofit incorporate a commitment to internationally recognized human rights into its bylaws, but “what this term actually means remains undefined and open-ended,” Goodlatte and Grassley said. “This could lead to the adoption of definitions of free speech that run counter to American values and jurisprudence, in opposition to a free and open Internet. Further, leaving these terms undefined has raised fears that foreign governments could use this ambiguity to use ICANN as a tool to moderate content. … Without resolution of these issues, the multi-stakeholder community and policymakers cannot in good faith vote to eliminate the United States’ role as a necessary and responsible backstop against threats to openness and free speech on the Internet.” ICANN’s Cross Community Working Group on Enhancing ICANN Accountability plans to address the human rights bylaw’s implementation as part of work on a second set of accountability mechanism changes (see 1606240055).
Goodlatte and Grassley also took issue with ICANN’s intention to change the voting threshold for the ICANN board to reject Governmental Advisory Committee consensus advice to 60 percent. “The power of foreign governments would be significantly increased” via the voting threshold change, the chairmen said. They also criticized ICANN for continuing to allow GAC to “continue to be able to exert special power to convey advice to the board directly for a mandatory vote, unlike other advisory bodies.”
Goodlatte and Grassley said “it is troubling” that NTIA appears to have used its FY 2016 funds and other resources “in furtherance” of the IANA transition given the transition funding ban rider attached to the FY 2016 omnibus spending bill. They cited NTIA’s report earlier this month on the transition review, which said the agency “utilized a number of resources and tools” to assess ICANN’s plans. NTIA also noted its collaboration with other federal agencies in assessing the IANA transition, which Goodlatte and Grassley said violates federal law.
NTIA must give the committees further information by July 22 on aspects of the IANA transition plans that appear to “lack legal clarity or organizational stability,” Goodlatte and Grassley said: The agency must explain how it can “ensure that future actions by ICANN do not bring about potentially harmful changes that would limit free speech or human rights once the United States no longer maintains the IANA functions contract.” The agency also must discuss its “contingency plans” for dealing with potential government capture of ICANN post-transition. Goodlatte and Grassley asked NTIA whether the agency will “commit to postpone any transition in the absence of a determination by GAO” and DOJ's Office of Legal Counsel on whether the root zone file or other IANA aspects constitute government property.